On the
evening of August 29, 2007, two armed and masked men entered
a home in Springfield, assaulting and robbing its occupants
at gunpoint. As they left, the homeowner, Tracy Bennett, who
was returning home, was shot and killed. Swinkels Laporte and
Maxwell Wiggins were identified as the assailants and,
following a joint jury trial in the Superior Court, were
found guilty of murder in the first degree, as well as other
offenses related to the home invasion.

On
appeal, they primarily claim that witnesses were improperly
allowed to identify them as the perpetrators during the
trial. They also raise various evidentiary issues, and claim
error in the prosecutor's closing argument. Wiggins
further challenges the denial of his motions to sever and for
a mistrial, based on co-counsel's cross-examination of a
witness regarding a previously suppressed out-of-court
identification. Laporte separately challenges his nonmurder
sentences. Finally, both defendants seek relief pursuant to
G. L. c. 278, § 33E.

We
discern no reversible error and, after a thorough review of
the record, decline to reduce or set aside the verdicts under
G. L. c. 278, § 33E. Accordingly, we affirm the
defendants' convictions. However, we remand for
resentencing Laporte's convictions of home invasion and
armed robbery while masked.

Background.

We
summarize the facts the jury could have found, reserving
certain details for discussion of the issues.

Tracy
Bennett lived with her adult daughter, Susan; her eighteen
year old son, Daniel; Susan's three young children; and a
seventeen year old family friend, Angel Colon.[3] The
defendants were friends of Daniel and visited him frequently
at the Bennett home, where they would often see Susan, Tracy,
and Colon as well. The defendants and Daniel usually spent
their time in Daniel's room, where they played video
games on Daniel's new Xbox video game console. In his
room, Daniel kept a safe containing money and marijuana that
he sold to friends; the defendants were aware of the safe and
had seen its contents. A couple of weeks before the killing,
Colon thought he overheard the defendants discussing wanting
to take the Xbox.

On the
evening of August 29, 2007, Tracy had gone out; Colon and
Susan were watching television in Susan's room, and
Daniel was with his girl friend in his room. At approximately
10 P..M., two masked African-American men carrying guns
entered the home. One was short and skinny; the other was
tall and stocky.[4] They wore dark hooded sweatshirts,
dark pants, and dark baseball caps. One of the sweatshirts
had a zipper, and the other was a pullover, like sweatshirts
Colon had seen Wiggins and Laporte wear on multiple
occasions. The intruders also wore black bandanas over their
noses and mouths. Colon, who looked down the hallway to see
whether Tracy had come home, saw the two proceed toward him
and thought that Daniel's friends, Wiggins and Laporte,
were playing a joke. He quickly learned the intruders'
intentions when the shorter one said, "Where's the
fucking shit? We ain't playing. This ain't no joke,
" and punched him in the face. Colon and Susan were
forced to lie face down on the bed as the shorter assailant
took items from the room, including Susan's cellular
telephone, a piggy bank, and a small camcorder.

Simultaneously,
the taller intruder banged on Daniel's locked bedroom
door and then forced the door open. He pointed a gun at
Daniel's face and said, "Give me your shit. I know
you've got it." The two struggled briefly, then the
intruder hit Daniel in the head with the gun, and Daniel
opened the safe. The intruder instructed Daniel to put cash,
marijuana, the Xbox console, games, and digital video disc
(DVD) movies into a large trash bag.

As soon
as Colon heard the two men leave the house, he telephoned
911. As he was on the telephone with the dispatcher, he,
Daniel, and Susan heard a gunshot. They ran outside and found
Tracy shot in the face and bleeding profusely.

First
responders arrived at the scene shortly after 10 P.M. to
attend to Tracy and investigate the crime. Colon reported to
an officer that "Swinkels and Max" committed the
crimes and told him where each lived. At approximately 10:45
£.M., officers arrived at Laporte's home, where
they found the defendants. A search of that home yielded
items that appeared to have been stolen from the Bennett
home, including an Xbox console and components, games, DVD
movies, cash and coins, jewelry boxes, and a digital scale.
The officers also collected other items, including
ammunition, three black hooded sweatshirts, and other
clothing.

The
State police crime laboratory performed forensic testing on
the sweatshirts. The cuffs of one sweatshirt tested positive
for gunshot residue (GSR) as well as occult blood. A second
sweatshirt also tested positive for occult blood.
Investigators also performed deoxyribonucleic acid (DNA)
testing on swabs taken from the wear areas of the
sweatshirts. DNA testing of samples from the sweatshirt with
GSR did not produce any conclusive matches. However, the
investigators found that the second sweatshirt contained a
DNA profile matching that of Laporte and a third sweatshirt
contained a DNA profile matching Wiggins.

At
trial, the defendants sought to convince the jury that any
identification of the defendants as the intruders was a
mistake. They argued that Daniel had only mentioned their
names to the police when he was asked whether he had any
African-American friends and that the police had
inappropriately focused on them. Laporte in particular argued
that, although the stolen property had been found at his home
and his DNA profile matched a sample from one of the black
sweatshirts also found there, the robbery could have been
committed by his brother, which would also explain those
facts. We discuss the defendants' arguments in more
detail below.

Discussion.

1.
In-court identification of the defendants.

Although
the defendants' theory was misidentification, this is not
a case where the alleged perpetrators were unknown to the
eyewitnesses. Daniel, Susan, and Colon had known the
defendants for some time. The jury heard testimony that
Wiggins and Daniel had been friends for a couple of years
prior to the robbery and shooting, and Wiggins frequently
visited Daniel. Daniel had known Laporte for approximately
six months, during which time Laporte visited Daniel with
Wiggins on multiple occasions. Both Susan and Colon saw the
defendants when they visited Daniel. Colon, who had already
known Laporte for several years, would sometimes play video
games with Wiggins, Laporte, and Daniel in Daniel's room.
However, despite the witnesses' familiarity with the
defendants, compare, e.g., Commonwealth v. Johnson,
420 Mass. 458, 459-460 (1995) (armed robbers were unknown to
defendant), the defense argued that because the intruders
wore masks, the witnesses mistook them for the defendants.

On the
night of the break-in and shooting, each of the witnesses
viewed each defendant separately in what was later determined
to be an unnecessarily suggestive showup
procedure.[5]As a result, the motion judge
suppressed the out-of-court identifications that Colon and
Susan had made during the showup and that Daniel had made
afterwards at the police station. Nevertheless, the judge
allowed all three to make in-court identifications of the
defendants at trial: Colon identified both defendants as the
intruders; Susan identified Laporte as one of the two
intruders; and Daniel identified Wiggins as one of the
intruders, although the identification was equivocal. The
defendants assert that this was prejudicial error. We
disagree.

Colon
testified that despite the masks, he recognized the intruders
as Wiggins and Laporte as they walked toward him. He
recognized the defendants by voice, clothes, build, and the
way they walked. He told police at the scene who the
assailants were and where they lived. Colon further pointed
out Laporte as the intruder who punched him in the mouth
during the home invasion. Although the defendants objected to
Colon's in-court identifications, there was an
independent source for that identification because Colon
unequivocally identified the defendants as the perpetrators
prior to the suggestive showup procedure.

In
court, Susan identified Laporte as the shorter intruder
without objection. She testified that although he wore a
mask, she recognized Laporte as he walked down the hall
toward her by his walk, voice, size, and build. She testified
that she told a police officer at the scene that she believed
the person who robbed her was Laporte, but she could not
recall who she spoke with (no officer confirmed her
statement). Because Susan's testimony that she identified
Laporte by name before the suggestive procedure would be
admissible regardless of the admissibility of her in-court
identification, we conclude that there is no substantial
likelihood of a miscarriage of justice arising from defense
counsel's failure to object to her in-court
identification.

As for
Daniel, on direct examination by the Commonwealth, and
without objection, Daniel identified Wiggins as the intruder
who came into his room.[6] He testified further (without
objection) that despite the hood and bandanna, he recognized
Wiggins from Wiggins's build, skin tone, and voice, but
he later stated that he could not be sure.[7] Although
Daniel did not directly identify either of the defendants
prior to the tainted showup, he effectively made at least an
equivocal identification of Wiggins by his actions at the
scene of the crime: Daniel testified that after the shooting
he took his mother's keys, got into her vehicle, and
planned to go to Wiggins's home to see whether Wiggins
had been the intruder in his room. When Colon took the keys
away, Daniel telephoned Wiggins's home and Wiggins's
sister in an attempt to locate him. This evidence would allow
a reasonable jury to conclude that, at a minimum, Daniel had
made an equivocal identification of Wiggins as a perpetrator
prior to the suggestive procedure. As a result, we conclude
that there is no substantial likelihood of a miscarriage of
justice arising from the failure by Wiggins's attorney to
object to an in-court identification that, viewed in its
totality, also was equivocal.

2.
Daniel's out-of-court identification.

Wiggins
asserts that there was error in admitting testimony of a
police officer about Daniel's out-of-court identification
of Wiggins because it had previously been suppressed. Wiggins
also argues that the trial judge erred in denying his motions
to sever and for a mistrial based on co-counsel's
cross-examination of Daniel that led to the police
officer's testimony. We conclude that there was no abuse
of discretion in denying Wiggins' motions. Further, we
conclude that there was no substantial likelihood of a
miscarriage of justice in admitting evidence of Daniel's
out-of-court identification.

The
out-of-court identification, made during police questioning
following a showup procedure on the night of the murder, was
suppressed because the showup was found to be unnecessarily
suggestive. See note 5, supra. During
cross-examination by Laporte's counsel, Daniel was
questioned about his ability to see the perpetrator given the
lighting and the mask, as well as his failure to identify
Wiggins to the police as one of the perpetrators until much
later in the night, when police informed him that his mother
had died. This included multiple questions pertaining to the
previously suppressed out-of-court identification by Daniel
of Wiggins.[8] Wiggins did not object to this
questioning at the time. Wiggins also did not object when the
prosecutor, in turn, asked Daniel about his out-of-court
identification of Wiggins during redirect examination.
However, both defendants later objected to the
prosecutor's questioning of the detective who had taken
Daniel's statement, which included Daniel's
identification of Wiggins. The defendants also moved for a
mistrial. The judge denied the motion but ordered the
prosecutor not to inquire "in the slightest fashion,
regarding anything that [the motion judge] suppressed."

The
next morning, the prosecutor asked the judge to allow her to
question the detective about the identification of Wiggins,
arguing that Laporte had "open[ed] the door" and
Wiggins had failed to object. In response, Wiggins moved to
sever and for a mistrial. The judge denied both motions. In
addition, after reviewing the transcripts, the judge ruled
that Wiggins had waived his right to enforce the suppression
ruling, at least as to whether Daniel had identified Wiggins
at the police station. The judge allowed the prosecutor to
elicit the same testimony as Laporte's counsel, i.e.,
that after Daniel heard that his mother had died, he
identified Wiggins as the robber.[9]

Laporte
waived any objection to the admission of Daniel's
out-of-court identification based on his counsel's
cross-examination of Daniel on this topic; thus, had the
defendants been tried separately, Laporte would have
"opened the door, " allowing the Commonwealth to
respond. See Commonwealth v. Alcantara, 471 Mass.
550, 557 n.6 (2015), citing Commonwealth v.
Williams, 379 Mass. 600, 604-605 (1980) (where defendant
waives issue by using challenged statements, he "open[s]
the door to their use by the Commonwealth"). Accord
PettiJohn v. Hall, 599 F.2d 476, 481 (1st Cir.),
cert, denied, 444 U.S. 946 (1979) ("Once a defendant
attempts to introduce testimony that is intimately
interrelated with previously suppressed testimony, the
defendant waives his objections to the introduction of that
related evidence"). Wiggins contends, however, that
Laporte's counsel's actions could not waive
Wiggins's rights, for due process reasons. We agree. Cf.
Commonwealth v. Collado, 426 Mass. 675, 676 (1998)
(defendant's waiver of right to jury trial did not affect
codefendant's right). Accord United States v.
White, 887 F.2d 267, 269-270 (D.C. Cir. 1989).

However,
although Laporte could not waive Wiggins's rights,
Wiggins failed to object to his codefendant's
cross-examination of Daniel, to the prosecutor's redirect
examination, or to Daniel's in-court identification of
Wiggins. As a result, where admission of any of the related
identifications would have been error, we consider how those
errors could have combined to cause a substantial likelihood
of a miscarriage of justice in the context of the evidence
adduced at trial.[10] See Commonwealth v. DePina,
476 Mass. 614, 623 (2017). Based on Daniel's in-court
identification of Wiggins as one of the perpetrators,
Daniel's actions to check Wiggins's whereabouts
following the killing, and the fact that Colon named Wiggins
to police officers at the scene of the crime, the jury had a
reasonable basis to conclude that Wiggins had participated in
the robbery. In this context, Laporte's line of
questioning did not cause a substantial likelihood of a
miscarriage of justice. We reach the same conclusion as to
the Commonwealth's examination of the police detective on
this issue, as the prosecutor was not permitted to inquire
beyond the testimony that had already been elicited by
Laporte.[11] Compare note 8 with note 9,
supra.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Further,
in the circumstances, we conclude that the trial judge did
not abuse his discretion in denying Wiggins&#39;s renewed
motion for a mistrial and his motion to sever. See
Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990)
(mistrial is subject to judge&#39;s discretion);
Commonwealth v. Jackson, 391 Mass. 749, 759 (1984),
quoting Commonwealth v. DiPietro, 373 Mass. 369, 387
(1977) (ground for mistrial "must be called to the
attention of the judge immediately, or when the aggrieved
party first learns of it"); Commonwealth v.
Moran, 387 Mass. 644, 658 (1982) (abuse of ...

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